SMU Law Review Volume 72 Issue 3 Article 9 2019 Deliberative Democracy, Truth, and Holmesian Social Darwinism Alexander Tsesis Loyola University Chicago, School of Law, [email protected] Follow this and additional works at: https://scholar.smu.edu/smulr Part of the Supreme Court of the United States Commons Recommended Citation Alexander Tsesis, Deliberative Democracy, Truth, and Holmesian Social Darwinism, 72 SMU L. REV. 495 (2019) https://scholar.smu.edu/smulr/vol72/iss3/9 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. DELIBERATIVE DEMOCRACY, TRUTH, AND HOLMESIAN SOCIAL DARWINISM Alexander Tsesis* TABLE OF CONTENTS I. INTRODUCTION ........................................ 495 II. MARKETPLACE OF IDEAS FRAMEWORK ........... 496 III. CONSTRUCTIVE TRUTHS VS. DESTRUCTIVE MESSAGES .............................................. 503 IV. TRUTH AND DELIBERATIVE DEMOCRACY ........ 508 V. CONCLUSION ........................................... 510 I. INTRODUCTION USTICE Oliver Wendell Holmes Jr.’s “marketplace of ideas” anal- ogy continues to deeply influence First Amendment doctrine. It pro- Jvides a rational substratum upon which the political or self- realization characterizations of free speech are built. However, typically overlooked is the Social Darwinistic root of the Justice’s thought. He championed the spread of ideas and the political sway of majority opin- ions. That analytical insight is key to many of the Supreme Court’s free speech precedents. On the one hand, the concept is invaluable for de- fending free discussions about philosophy, political science, the arts, hu- manities, pedagogy, and social sciences. In these areas, the marketplace of thoughtful expression will give rise to searching wisdom, understand- ing, culture, taste, achievement, scientific truth, political action, and crea- tivity. On the other hand, market political leverage can drown out minority voices. According to a Holmesian relativist understanding, pop- ulist versions of truth can and should dominate law and its formation. To his mind, the judiciary lacks any power to check “proletarian dictator- ship” from forming in the country.1 Left unqualified, his political perspec- tive on truth allows for abuses of representative governance. In the second decade of the twenty-first century, democratic institutions are be- ing exploited by populist autocrats like Hungary’s Viktor Orban or Tur- key’s Recep Tayyip Erdogan. Populism in the United States, on the right and on the left of the political spectrum, is alarmingly flirting with xeno- phobia, racism, and anti-Semitism. That political reality should give us some pause about expecting libertarianism to yield a just truth. * Raymond & Mary Simon Chair in Constitutional Law and Professor of Law, Loyola University Chicago School of Law. 1. Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting). 495 496 SMU LAW REVIEW [Vol. 72 Justice Holmes’s Social Darwinistic approach to the marketplace of ideas is fraught with callous notions of preference for powerful speakers. It stands in opposition to a more equalitarian understanding of markets, which recognizes the policy balance governments sometimes undertake to advance important interests that protect open dialogue, while empower- ing indigent and powerless individuals to join the conversation.2 Truth and falsity are manipulable concepts, not generally something courts want to resolve. Falsehood is inevitable in conversation. At a minimum, mistakes are rampant in discourse, therefore as New York Times Co. v. Sullivan championed a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide- open.” 3 People living in a deliberative democracy must be given space to joke, speak figuratively, and hyperbolically criticize government without risk of censorship or punishment. Government lacks the authority to re- quire parties to adopt its version of truth.4 This essay first provides a brief doctrinal trajectory of how the Court developed its marketplace of ideas doctrine. It then critiques the construct’s amenability to authoritarian doctrines. At its core, this essay argues against the libertarian view of free speech and for the adoption of a limited balancing test that, along with precedents, requires judges to weigh speech, public policy, a means/ends analysis, and the availability of less intrusive ways of achieving the nar- rowly tailored government aims.5 II. MARKETPLACE OF IDEAS FRAMEWORK Justice Holmes first articulated the marketplace of ideas doctrine in his 1919 dissent to Abrams v. United States.6 He was not the first to come up with that framework for reviewing speech restrictions, rather he relied on John Stuart Mill’s7 and John Milton’s8 works. Neither was Abrams Holmes’s first foray into free speech jurisprudence. Earlier the same year, he had initiated the clear and present danger test into (what should be said was really the creation of) modern First Amendment jurisprudence 2. See Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 COLUM. L. REV. 2117, 2127 (2018). 3. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). 4. Totalitarian regimes equate official statements of truth with state policy and re- press any views contrary to political dogma. For an excellent literary depiction of official truth used to manipulate the ideas of citizens, see ARTHUR KOESTLER, DARKNESS AT NOON 236–37 (Daphne Hardy trans., The Modern Library 1941) (expressing Soviet cyni- cism about the existence of any objective truth other than the totalitarian government’s political definition of it). 5. I am borrowing the basic aspects of this standard from United States v. Alvarez, 567 U.S. 709, 730 (2012) (Breyer, J., concurring). In addition to the four balancing factors Jus- tice Breyer lists, traditional and doctrinal reasons are also relevant to the exercise of judi- cial judgment. 6. 250 U.S. 616, 630–631 (1919) (Holmes, J., dissenting). 7. JOHN STUART MILL, UTILITARIANISM, LIBERTY AND REPRESENTATIVE GOVERN- MENT 105 (1957). 8. JOHN MILTON, AREOPAGITICA 58 (1918). 2019] Deliberative Democracy 497 in Schenck v. United States,9 Frohwerk v. United States,10 and Debs v. United States.11 Those cases accepted that government can restrict speech when it poses a clear and present danger to national security. Consistent with those three cases, in Abrams, Holmes stated, “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.”12 Holmes’s dissent should be read con- textually with the events that led to the conviction of a group of Russian immigrants, who were sympathetic to the Bolshevik revolution in the So- viet Union. The five-person clique of Russian emigres living in New York opposed sending U.S. troops into the U.S.S.R., urging “the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the government of the United States, and to cease to render it assistance in the prosecution of the war.”13 Holmes dissented to the conviction of these small-time pamphleteers, who posed no clear and present danger to the government, nor even to U.S. conscription.14 He believed, instead, that government prosecuted Abrams and his co-publishers for their un- popular communist beliefs.15 Holmes’s statement of the marketplace of ideas is pithy: [M]en . may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.16 While this powerful statement is often cited and quoted, too rarely no- ticed in literature about his dissent to Abrams is the relativistic nature of Holmes’s marketplace of ideas. He made its underlying cynicism clear in a 1925 dissent to Gitlow v. New York: “If in the long run the beliefs ex- pressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”17 Holmes recognized that government can act against immediate threats to its con- tinued existence; he thinks even the establishment of a “proletarian dicta- torship” to be within the legitimate authority of the masses. Tragic twentieth century examples of popular dictatorships that benefitted from 9. 249 U.S. 47, 52 (1919). 10. 249 U.S. 204, 206 (1919). 11. 249 U.S. 211, 216 (1919). 12. Abrams v. United States, 250 U.S. 616, 628 (1919) (Holmes, J., dissenting). 13. Id. at 620–21 (majority opinion). 14. Id. at 628 (Holmes, J., dissenting). 15. Id. at 629–30. The Court has repeatedly ruled that there is a difference between advocacy of abstract theories justifying the use of violence and actual preparations taken in furtherance of such theories. See, e.g., Noto v. United States, 367 U.S. 290, 297–98 (1961). 16. Abrams, 250 U.S. at 630 (Holmes, J., dissenting). 17. Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting). 498 SMU LAW REVIEW [Vol. 72 charismatic orators—in Nazi Germany, Maoist China, Soviet Union, and Khmer Rouge Cambodia—should give us pause about Holmes’s perfunc- tory assumption about truth being the eventual outcome of deliberative discourse. In those historical cases, it was not the most reasonable groups that ascended to power but the most ruthless, narrow-minded, and ideo- logically inflexible ones who established autocratic governments by the power of their rhetoric.